ORDER OF THE GENERAL COURT (Third Chamber)
29 June 2010 (*)
(Multiple framework contract ‘Commission 2007’ – Recruitment of experts in the context of actions relating to aid granted to non-member countries – Tasks requiring expertise – Commission measure relating to the number of billable days’ work – Action for annulment – No challengeable act – Inadmissibility – Action for damages – Causal link – Action manifestly lacking any foundation in law)
In Case T‑515/08,
Volker Mauerhofer, residing in Vienna (Austria), represented by J. Schartmüller, lawyer,
applicant,
v
European Commission, represented by S. Boelaert, acting as Agent,
defendant,
APPLICATION for, first, annulment of the Commission’s administrative order of 9 September 2008 amending specific contract 2007/146271, which had been concluded between the Commission and the framework contractor for the project ‘Value Chain Mapping Analysis’ carried out in Bosnia and Herzegovina, by reducing the number of days’ work carried out by the applicant – under a contract between him and the framework contractor – for which the framework contractor could bill the Commission, and second, the award of damages,
THE GENERAL COURT (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Contractual context
Multiple framework contract ‘Commission 2007’
1 The Commission of the European Communities established from 16 January 2007 for an initial, renewable, period of two years a multiple framework contract entitled ‘EuropeAid/123314/C/SV/multi’ or ‘Commission 2007’, which has the aim of enabling the rapid and transparent recruitment of experts in the context of actions, grouped together in six lots, undertaken in the exclusive interest of the Commission or in the common interest of the Commission and of the countries or authorities that are the beneficiaries of external aid programmes. This multiple framework contract is made up of contracts that are separate but concluded on the same terms with a number of service providers.
2 For each of the six lots, three framework contractors were selected by the Commission and they concluded framework contracts with it. Once the Commission has concluded a framework contract with a particular framework contractor, the users of the system, including Commission delegations in non-member countries, can issue requests for specific services. These requests are sent to the three framework contractors for the lot concerned, who then submit their offers. Each offer must contain, in particular, a financial offer and the name and curriculum vitae of each expert proposed by the framework contractor. After the offers have been received, the user’s evaluators choose the economically most advantageous offer on the basis of the availability and profile of the experts and the proposed fees. The procedure leads in this way to the conclusion of a specific contract between the Commission and the framework contractor chosen.
Framework contract of 12 January 2007 concluded between the Commission and the consortium led by AESA
3 Pursuant to the multiple framework contract Commission 2007, the Commission and the consortium led by Agriconsulting Europe SA (‘AESA’) concluded on 12 January 2007 a framework contract for Lot No 5 ‘Evaluations and presentations in the field of trade, businesses and regional economic integration’.
4 This framework contract comprises, in order of precedence, the special conditions of the framework contract (‘the Special Conditions’) and a set of annexes, which include Annex 1, containing the general conditions governing the contract (‘the General Conditions’), and Annex 2, containing the global terms of reference with their own annexes (‘the Global Terms of Reference’) (Article 2 of the Special Conditions).
5 Article 9.1 of the Special Conditions stipulates that the law of Belgium is to govern all matters not covered by the framework contract.
6 Article 11 of the Special Conditions confers exclusive jurisdiction on the courts of Brussels (Belgium) for settling disputes arising out of or relating to the framework contract.
7 Article 20 of the General Conditions sets out the body of rules governing amendments to a specific contract concluded between the contracting authority and the framework contractor (see paragraph 2 above).
8 Thus, Article 20.1 stipulates that substantial modifications to the specific contract must be made by means of an addendum.
9 Article 20.2 stipulates, on the other hand, that where the amendment does not affect the basic purpose of the specific contract and where, in the case of a specific contract providing for fees for the work of experts (a fee‑based specific contract), the financial impact of the amendment is limited to a transfer within the fees or between the fees and the reimbursables, involving a variation of less than 15% of the total value of the original contract, the amendment is authorised by means of an administrative order made by the project manager. The project manager monitors the implementation of the contract on behalf of the contracting authority (Article 1.3 of the General Conditions).
10 Article 20.4 to 20.6 of the General Conditions provide explanation regarding the procedure for making an administrative order.
11 It is apparent from Article 20.4 that, before making an administrative order, the project manager must notify the framework contractor of the nature and form of the variation of the services supplied that is to be covered by the administrative order. After receiving such notification, the framework contractor must submit to the project manager a written proposal containing (i) a description of the service to be performed or the measures to be taken and a programme for execution of the service or measures, (ii) any necessary modifications to the programme of performance in question or to the framework contractor’s obligations under the contract and (iii), in the case of a fee-based contract, any adjustment to the value of the specific contract.
12 Article 20.5 provides that, following receipt of the framework contractor’s proposal, the project manager must decide whether or not the variation is to be carried out. If he decides that the variation is to be carried out, he must issue the administrative order stating that the variation is to be carried out under the conditions given in the framework contractor’s proposal or as modified by the project manager in accordance with Article 20.4.
13 Article 20.6 stipulates in essence that, upon receipt of the administrative order requesting the variation, the framework contractor must proceed to carry out the variation and is to be bound by it as if it were stated in the specific contract.
14 Point 3.2 of the Global Terms of Reference provides that the framework contractor is responsible for all administrative aspects of the assignment entrusted to him by a specific contract, namely, in particular, for the conclusion of contracts with experts.
15 Point 7.1.5 of the Global Terms of Reference provides that, once the final report or other outputs are accepted, the framework contractor must invoice the contracting authority identified in the specific contract as rapidly as possible. Point 7.1.5 also provides that the framework contractor is responsible for the timely payment of the experts and that the contracting authority is in no way liable in this regard.
Specific contract of 21 December 2007 concluded between the Commission and AESA
16 On 16 November 2007, the Commission delegation to Bosnia and Herzegovina sent the three framework contractors for Lot No 5 a request for recruitment of experts for the project ‘Value Chain Mapping Analysis’, whose aim, in essence, was the strengthening of the competitiveness of the Bosnian economy. The consortium led by AESA was selected on the basis of an offer submitted on 3 December 2007. A specific contract, bearing the reference 2007/146271, was thus concluded on 21 December 2007 between the Commission and AESA for the price of EUR 177 950 and for a six-month period expiring on 15 July 2008.
17 This contract contained, in particular, the specific terms of reference for the project ‘Value Chain Mapping Analysis’ (‘the Specific Terms of Reference’) and the offer accepted (points 7.1 and 7.1.4 of the Global Terms of Reference).
18 The Specific Terms of Reference contained details regarding the profile of the experts required to carry out the assignment envisaged by the specific contract, who had to be recruited by the consortium led by AESA (see paragraph 14 above). The Specific Terms of Reference foresaw the use of three experts, namely an expert in value-chain analysis, who would also be appointed the experts’ team leader, an expert for small- and medium-sized enterprises (SMEs) and an environmental business adviser. The Specific Terms of Reference also stated indicatively that the participation of each expert in the project would amount to 85 man-days for the first expert, 75 man-days for the second expert and 20 man-days for the third expert.
19 In its offer submitted to the Commission, the consortium led by AESA proposed the applicant, Volker Mauerhofer, for the duties of expert No 3, that is to say, environmental business adviser. According to the offer, AESA proposed to invoice the Commission for 20 days’ work by the applicant on the project, at a unit price of EUR 760. Thus, the budget proposed by AESA to the contracting authority amounted to EUR 15 200 so far as the work performed by the applicant was concerned.
Contract of 11 January 2008 concluded between the applicant and AESA
20 Following the conclusion of the specific contract between the Commission and AESA (see paragraph 16 above), on 11 January 2008 AESA concluded a contract with the applicant, bearing the reference LF/5043/025/004/2008, for the supply by him of an expert’s report as environmental business adviser.
21 This contract comprises special clauses and also general clauses which are annexed to the contract and which, according to the preamble thereto, are an integral part of the contract.
22 Article 2 of the special clauses of the contract stipulates, so far as is relevant, as follows:
‘The present contract has been concluded for a predetermined enterprise … with an estimated duration of 20 calendar days …
The contract will expire upon approval of the Final Report on the project.
…
The termination of the contract between [AESA] and the … Commission will automatically put an end to the present contract, and the Expert will be paid for approved work actually carried out without any compensation.
Should the … Commission request the replacement of the Expert, [AESA] can terminate the present contract without notice nor indemnity of any kind.
…
[AESA] is solely responsible for the Collaborator’s work. The … Commission may not under any circumstances be considered to be the employer of the Collaborator, and the Collaborator undertakes not to invoke against the … Commission any right arising from the working relationship between the Commission and [AESA].’
23 Article 3 of the special clauses of the contract stipulates that the applicant’s remuneration consists of a daily fee of EUR 500 gross and a daily allowance of EUR 143 to cover the expenses linked to his stay in the territory concerned by the project. Article 3 also sets out the manner in which the applicant’s remuneration would be paid by AESA. Thus, 20% of his fees, that is to say EUR 2 000, would be paid to him as an advance, 30% of his fees, that is to say EUR 3 000, would be in the form of an interim payment and, lastly, the remaining 50%, that is to say EUR 5 000, would be paid as a final payment, following receipt by AESA of the applicant’s final invoice and approval of the final report by the appropriate services of the European Commission or by the project beneficiary.
24 Article 9 of the general clauses annexed to the contract stipulates that ‘any modification of the present contract or schedule thereto shall only be valid if agreed to and confirmed in writing by both parties’.
25 Finally, Article 11 of the general clauses of the contract confers jurisdiction on the Brussels Court of First Instance to hear disputes which may arise between the parties on the application and the interpretation of the contract.
Facts, procedure and forms of order sought
26 The indicative date for the commencement of work related to the project ‘Value Chain Mapping Analysis’ was set as 15 January 2008 and the date for completion of the work was set as 15 July 2008 (see point 4 of the Specific Terms of Reference).
27 It is apparent from the documents before the Court that in April 2008 the project manager expressed to the experts’ team leader and AESA her dissatisfaction regarding the quality of the applicant’s written contribution and indicated that if the contribution were not put right she would not be able to accept it. Ultimately, the applicant’s written contribution was accepted by the project manager, following changes which were made to it both by the project manager herself and by the experts’ team leader.
28 By email of 14 August 2008, the project manager, voicing her dissatisfaction in respect of the work performed by the applicant, expressed the view that he should be paid for only half of the days worked.
29 In response to this email, the person responsible for the project at AESA stated, by email of the same day, that, in order for AESA to be able to pay the applicant for fewer days’ work and the experts’ team leader for more, AESA needed an official letter from the Commission explaining why the applicant was not to be paid for all the days worked. AESA was stated in the email not to have the contractual power to reduce the applicant’s remuneration without such a letter.
30 By letter of 9 September 2008, the Commission delegation to Bosnia and Herzegovina communicated to AESA administrative order No 2 (‘the administrative order at issue’), amending specific contract 2007/146271 concluded between the two parties. By means of this administrative order, the project manager allowed the transfer of six man-days’ work of the applicant, budgeted for in the original specific contract, to the budget envisaged for expert No 1 and team leader, on the grounds of the applicant’s unsatisfactory performance and the additional work to which this had led for the team leader.
31 According to the letter of 9 September 2008, the applicant’s unsatisfactory performance resulted from the fact that he wrongly devoted half of the time allocated to him to drawing up a report which proved not to be in line with the instructions and explanations that had been provided to him. He then used the second half of the time available to him to rewrite his report. The letter stated that when the report was completed its drafting quality was found not to be of an acceptable standard, this requiring significant revision carried out by the team leader, over and above the number of man-days that had been originally allocated to him.
32 By email of 10 September 2008, the person responsible for the project ‘Value Chain Mapping Analysis’ at AESA informed the applicant that the administrative order at issue had been made and told him that, following the making of the order, he would be paid only for 14 days’ work instead of 20. She accordingly requested him to submit the final invoice for his services to AESA, taking account of that reduction.
33 By letter of the same day, the applicant asked the Commission to reconsider the contested measure, indicating the reasons which in his view justified such reconsideration.
34 By email of 12 September 2008, in response to the applicant’s letter of 10 September 2008, the Commission requested the applicant to address any question concerning specific contract 2007/146271 to AESA and not to the Commission, which had no contractual relationship with the applicant.
35 By letter of 29 September 2008, the applicant sent AESA the final invoice, which came to EUR 10 000 corresponding to 20 days’ work, plus EUR 500 corresponding to an additional day’s work which the applicant stated that he had had to devote to the project due to the ‘fault of [his] contract partner [AESA]’.
36 By letter of 15 October 2008, the applicant asked AESA to recognise all the claims set out in the final invoice and to pay him the as yet unpaid sum of EUR 5 500, setting 4 November 2008 as a deadline. AESA did not reply to this letter.
37 By letter also of 15 October 2008, the applicant asked the Commission to withdraw in writing the administrative order at issue by 24 October 2008 at the latest.
38 In response to the letter of 15 October 2008, the Commission, by letter of 22 October 2008, stated that ‘the [a]dministrative [o]rder [at issue] was the only solution the Contracting Parties [that is to say, the Commission and AESA] had left to bring this contract to a successful conclusion within the foreseen budget and deadlines’ and advised the applicant to contact AESA, given the fact that he had a contractual relationship with AESA.
39 By application lodged at the Court Registry on 19 November 2008, the applicant brought the present action.
40 The applicant claims that the Court should:
– primarily annul the contested measure;
– additionally or as an alternative to the claim for annulment, find that the Commission has incurred non-contractual liability through the unlawful adoption of the contested measure;
– order the Commission to pay him EUR 5 500 for the non-contractual damage suffered and annual interest at a rate of 4% from 4 November 2008 until delivery of the judgment bringing the present proceedings to an end;
– order the Commission to pay the costs.
41 By separate document lodged at the Registry on 6 February 2009, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the Court. It contends that the Court should:
– dismiss the action as manifestly inadmissible;
– order the applicant to pay the costs.
42 The applicant lodged his observations on the plea of inadmissibility on 26 March 2009. He contends that the Court should:
– dismiss the plea of inadmissibility;
– order that the Framework Contract Support Team produce the assessment form in respect of the framework contractor and the experts that was completed by the project manager;
– order the Commission to pay the costs.
Law
43 Under Article 114 of the Rules of Procedure, the Court may, on application of a party, give a decision on admissibility without considering the merits. Under Article 114(3) the remainder of the proceedings are to be oral unless it is decided otherwise.
44 In addition, as provided in Article 111 of the Rules of Procedure, where an action is manifestly lacking any foundation in law, the Court may, without taking further steps in the proceedings, give a decision on the action by reasoned order.
45 In the present case, the Court considers that the documents before it have provided sufficient information for it to give a decision and that there is no need to continue the written procedure and open the oral procedure.
Claim for annulment of the administrative order at issue
Arguments of the parties
46 The Commission submits that the action is manifestly inadmissible, essentially on two grounds. First, the action concerns in reality a contractual dispute. Second, the Commission has no contractual relationship with the applicant.
47 As regards the first ground relied upon, the Commission argues that the contested measure, contained in the letter of 9 September 2008 sent to AESA, was adopted within a purely contractual framework and is inseparably linked with the contract concluded between it and AESA. Nothing in that letter supports the conclusion that the Commission acted in the present case in the exercise of its prerogatives as a public authority. Through the letter the Commission, on the basis of the interpretation of the facts and relevant clauses in the specific contract with AESA, formalised a contractual adjustment that both contracting parties had agreed to. By so doing, the Commission acted only within the framework of its rights and obligations arising out of the contract between it and AESA.
48 It follows that the letter by its very nature is not among the measures covered by Article 249 EC the annulment of which may be sought.
49 In the Commission’s submission, according to settled case-law of the General Court and the Court of Justice applications for annulment can be brought only for causes of action which have their legal basis in a contract concluded by the Community where the Community Courts have been chosen by the parties as the dispute settlement forum for the contract (Case 43/84 Maag v Commission [1985] ECR 2581, paragraph 26; and orders in Case T-186/96 Mutual Aid AdministrationServices v Commission [1997] ECR II‑1633, paragraphs 35, 47 and 48; in Case T‑149/00 Innova v Commission [2001] ECR II‑1, paragraphs 25 and 30; in Case T‑387/00 Comitato organizzatore del convegno internazionale v Commission [2002] ECR II‑3031, paragraphs 37, 39 and 41; in Case T-85/01 IAMAConsulting v Commission [2003] ECR II‑4973, paragraphs 53 and 54; in Joined Cases T‑314/03 and T-378/03 Musée Grévin v Commission [2004] ECR II‑1421, paragraphs 85 and 87; in Case T-265/03 Helm Düngemittel v Commission [2005] ECR II‑2009, paragraphs 39, 40, 53 and 58; of 3 April 2006 in Case T-74/05 International Institute for the Urban Environment v Commission, not published in the ECR, paragraph 33; of 26 February 2007 in Case T-205/05 Evropaïki Dynamiki v Commission, not published in the ECR, paragraphs 39 to 56; of 2 April 2008 in Case T-100/03 Maison de l’Europe Avignon Méditerranée v Commission, not published in the ECR, paragraphs 21 to 24; and of 10 April 2008 in Case T-97/07 Imelios v Commission, not published in the ECR, paragraphs 21 and 22).
50 As regards the second ground of inadmissibility raised, the Commission stresses that it never had a contractual relationship with the applicant. Its contractual relationship is only with AESA which is exclusively responsible to the Commission for the services performed by its experts under the specific contract at issue. Furthermore, all contractual issues between the Commission and AESA relating to that contract have been resolved and there is no dispute between those two parties.
51 The Commission notes that the documents produced by the applicant confirm that the dispute is solely between him and AESA and show that there is no contractual relationship between him and the Commission. Those documents also confirm that AESA agreed with the Commission’s complaints regarding the applicant’s work. As contracting party AESA was required to present the Commission with invoices and cost statements reflecting the work done by the personnel it hired to provide the services concerned. The letter concerning the administrative order at issue was thus intended to formalise the contractual adjustments that had become necessary because of the applicant’s substandard performance.
52 The Commission draws the conclusion that it is before the Brussels courts that the applicant’s grievances against AESA’s decision to reduce his fees should be litigated.
53 The applicant counters by contending that the two grounds of inadmissibility raised by the Commission are unfounded.
54 As regards the first ground, the applicant contends that his application concerns a non-contractual dispute between him and the Commission.
55 The case-law relied upon by the Commission (see paragraph 49 above) is not applicable here, because it concerns a situation where a contract has been concluded between the two parties to the proceedings. In the present dispute, no such contract exists. There exist only, first, contracts between the Commission and AESA and, second, a contract between AESA and the applicant. Therefore, the applicant has never been in a position to agree with the defendant a clause such as that mentioned in Article 238 EC.
56 The applicant has shown in the application how the contested measure affects him directly and individually. This means that that measure is among the measures covered by Article 249 EC against which the applicant can bring an action for annulment since, in accordance with settled case-law, such an action must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position.
57 Therefore, it is sufficient according to settled case-law to establish that the contested measure is of direct and individual concern to an applicant and it is unnecessary to consider whether it may be regarded as a regulation or whether it was adopted by the institution pursuant to Treaty provisions.
58 Furthermore, contrary to the Commission’s assertions, a formal ‘administrative order’ such as the contested measure is, if only by its name, not simply a ‘contractual adjustment that both contractual parties had agreed to’. Article 20.6 of the General Conditions shows clearly the authoritative power of the Commission to conclude an administrative procedure with the adoption of a binding decision.
59 The Commission’s view that the contested measure is closely and inseparably linked with the contract concluded between it and AESA is not only irrelevant but also wrong. The contract between the applicant and AESA, on the one hand, and those between the Commission and AESA, on the other hand, contain clauses which confer jurisdiction on different courts in the event of dispute about the contested measure and which stipulate the application of different laws governing the dispute.
60 The applicant further observes that in any event the possible existence of a remedy before national courts cannot preclude the possibility of contesting the legality of a decision adopted by an institution before the Community Courts.
61 As regards the second ground of inadmissibility raised, the applicant contends that it and the first ground are contradictory since in the second ground the Commission asserts that there is no contract between it and the applicant, whilst the first ground is based on case-law involving the existence of a contract between the parties.
62 Finally, the applicant states that the Commission overlooks that, even on its EuropeAid webpage where the framework contract at issue is announced, the General Court is presented as the court having jurisdiction in respect of non-contractual claims against it.
Findings of the Court
63 It is common ground that in the present dispute there is no contractual relationship between the parties. Under point 3.2 of the Global Terms of Reference, only AESA has the power to conclude contracts with experts.
64 In light of the absence of a contractual relationship between the applicant and the Commission, the case-law relied upon by the Commission in support of the plea of inadmissibility raised (see paragraph 49 above) – case-law that stresses the contractual nature of the contested measure – is not relevant here. That case-law concerns cases in which the parties to the dispute had a contractual relationship, which is precisely not the case here. It is moreover on that premiss that the Community Courts, before which actions for annulment had been brought, declined jurisdiction, invoking, in essence, the contractual nature of the dispute and the absence of an arbitration clause or the absence of reliance upon such a clause as the basis for the action.
65 Here, if a legal relationship exists between the applicant and the Commission it could therefore only be of a non-contractual nature. It follows that an action for annulment of the contested measure is available to the applicant provided that that measure is a challengeable act and that, at the same time, the applicant has standing to bring proceedings.
66 As regards whether the contested measure constitutes a challengeable act, it is clear from settled case-law that an action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Case C-131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I-7795, paragraph 54; Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 29; and Case T‑260/04 Cestas v Commission [2008] ECR II‑701, paragraph 67).
67 It should therefore be examined in the present case whether the contested measure brings about a distinct change in the applicant’s legal position.
68 In this connection, it should be noted, first, that the present dispute’s legal framework consists of two separate contractual relationships: on the one hand, a contractual relationship exists between the Commission and AESA, formed (i) by the framework contract, the subject-matter of which is, essentially, the commitment entered into by AESA to make available to the Commission, each time it is so asked, experts in connection with operations linked to the external aid granted by the Community to non-member countries, and (ii) by the specific contract, the subject-matter of which is, essentially, the preparation by the experts recruited by AESA of a report whose aim is the strengthening of the competitiveness of the Bosnian economy; on the other hand, a contractual relationship exists between the applicant and AESA, formed by the contract under which the applicant undertook, essentially, to provide an expert’s report, in an estimate period of 20 calendar days, in return for remuneration of EUR 500 gross per day (see paragraphs 22 and 23 above). As has already been noted (see paragraph 63 above), those two contractual relationships are separate and there is no contractual relationship between the applicant and the Commission.
69 Second, it is to be pointed out that the contested measure was adopted within the framework of the first contractual relationship, namely the relationship between the Commission and AESA, with regard to which the applicant is a third party. Article 20 of the General Conditions, which sets out the body of rules governing amendments to the specific contract concluded between the Commission and AESA, stipulates in particular that amendments to the specific contract that are not substantial may be effected by means of an administrative order made by the project manager, that is to say, by the Commission (Article 20.2), and provides explanation (Article 20.4 to 20.6) regarding the procedure for making such an order, which involves the participation of the two parties to the contract only (see paragraphs 10 to 13 above). In addition, point 5.4.2 of the guidelines for the multiple framework contract Commission 2007 gives as an example of an amendment to a specific contract requiring an administrative order a ‘non-substantial change in the distribution of days worked among the experts’.
70 It follows that, in making the administrative order at issue, the Commission acted solely within the framework of the rights and obligations arising from the contractual terms between it and AESA, and not in the exercise of its powers as a public authority. Consequently, the administrative order at issue is a measure of a contractual nature and it does not constitute an administrative act adopted by the Commission, the legal effects of which might go beyond the contractual framework binding it and AESA and affect the legal position of a person not party to the contract, in the present instance the applicant.
71 Third, it must be found that the administrative order at issue produced legal effects solely in relation to AESA, since after it was made AESA was contractually bound to invoice the Commission for only 14 days’ work by the applicant instead of 20 as originally stipulated in the specific contract.
72 In light of the above reasoning, it is clear that the administrative order at issue produces and exhausts all its effects in the contractual relationship between the Commission and AESA with regard to which the applicant is a third party, without touching, and all the less bringing about a distinct change in, the applicant’s legal position. The applicant’s legal position is governed solely by the contract between him and AESA, without the administrative order at issue legally affecting his rights and obligations under that contract and, in particular, the level of his remuneration and the manner in which it is paid, matters which are set out in Article 3 of the special clauses of that contract.
73 It follows that the administrative order at issue does not bring about a distinct change in the applicant’s legal position within the meaning of the case-law cited in paragraph 66 above and, therefore, does not constitute in his regard an act that is challengeable by means of an action for annulment. On this basis, the claim for annulment brought by the applicant must be declared inadmissible and there is no need to examine whether the applicant has standing to bring proceedings challenging the administrative order at issue.
Claim for damages
74 In addition or in the alternative to the claim for annulment, the applicant has brought a claim for damages, on the basis of Article 235 EC and the second and third paragraphs of Article 288 EC, in respect of the Commission’s non-contractual liability.
75 In the applicant’s submission, first, such liability is incurred by reason of the unlawful adoption of the contested measure, causing the applicant financial loss of EUR 5 000 corresponding to the final tranche of his remuneration which AESA, in reliance upon the contested measure, refused to pay him. He states that AESA was willing to pay him only EUR 2 000, provided that he signed a declaration in the final mission claim serving as an invoice which stated that ‘[the applicant] hereby … declare[s] that all expenses were incurred undertaking the above mission and in conformity with the provisions of the service contract’. The applicant maintains that to proceed in that way was not acceptable to him since it would have constituted an acknowledgment that AESA had no debt as regards payment of the remaining fees.
76 He submits, second, that such liability is incurred because the Commission did not give the experts’ team leader sufficient and continuous instructions so that the team leader might remove from the applicant’s report the errors allegedly due to the team leader. This failure on the part of the Commission is stated to have caused the applicant financial loss of EUR 500, corresponding to the fees which he should have received for the additional unpaid day’s work that he had to carry out in order to make the necessary corrections.
77 The applicant has also asked that interest at the rate of 4%, from 4 November 2008 until delivery of the judgment bringing the present proceedings to an end, be paid on the sum of EUR 5 500 awarded to him in respect of the Commission’s non-contractual liability.
78 In accordance with settled case-law, in order for the Community to incur non-contractual liability a number of conditions must be satisfied: the conduct of which the institutions are accused must be unlawful, actual damage must have been suffered and there must be a causal link between that conduct and the damage pleaded (see Case C-243/05 P Agraz and Others v Commission [2006] ECR I‑10833, paragraph 26 and the case-law cited; Case T-333/03 Masdar (UK) v Commission [2006] ECR II‑4377, paragraph 59; and Case T-304/01 Abad Pérez and Others v Council and Commission [2006] ECR II‑4857, paragraphs 97 and 99).
79 Since those conditions are cumulative, the action must be dismissed in its entirety if any one of them is not met (see, to this effect, Abad Pérez and Others v Council and Commission, cited in paragraph 78 above, paragraph 99 and the case-law cited).
80 As regards the condition relating to the causal link, it is well established case-law that such a link exists where there is a sufficiently direct causal nexus between the conduct of which the institution is accused and the damage pleaded, the burden of proof of which rests on the applicant. The conduct complained of must therefore be the determining cause of the damage (Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier and Others v Council [1979] ECR 3091, paragraph 21, and Case T-149/96 Coldiretti and Others v Council and Commission [1998] ECR II‑3841, paragraph 101; see also the order in Case T‑201/99 Royal Olympic Cruises and Others v Council and Commission [2000] ECR II‑4005, paragraph 26 and the case-law cited).
81 In the present case, that link is manifestly missing.
82 First of all, it should be noted that the two losses pleaded by the applicant – the sum of EUR 5 000 and the sum of EUR 500 – constitute in actual fact the remuneration corresponding to the work allegedly carried out by the applicant, which AESA refuses to pay him. According to the applicant, the sum of EUR 5 000 constitutes the final tranche of his remuneration, as stipulated in Article 3 of the special clauses of the contract between the applicant and AESA (see paragraph 23 above) and corresponding to 10 days’ work carried out, whilst the sum of EUR 500 corresponds to the remuneration to be received for an additional day’s work that was supposedly carried out.
83 Next, it should be recalled that the applicant’s legal position and, therefore, his remuneration in return for the services rendered, are governed solely by the contract between him and AESA, and the Commission – which is not a party to that contract – cannot in law intervene in that regard (see paragraphs 63 and 72 above). More specifically, the conditions governing the applicant’s remuneration are laid down by Article 3 of the special clauses of the contract between him and AESA (see paragraph 23 above), and any increase in or reduction of that remuneration – resulting inter alia from an increase in or reduction of the number of days’ work for which the applicant is entitled to bill AESA – can result only from the contractual will of those two parties, as is attested by Article 9 of the general clauses annexed to that contract, which stipulates that ‘any modification of the present contract or schedule thereto shall only be valid if agreed to and confirmed in writing by both parties’ (see paragraph 24 above).
84 In light of the loss pleaded by the applicant, as defined in paragraph 82 above, and of the analysis contained in paragraph 83 above, it must be concluded that that loss is the direct result of the alleged refusal of AESA to remunerate the applicant for the work which he claims to have performed, and not of the Commission’s allegedly unlawful conduct, be it the making of the administrative order at issue or the lack of appropriate instructions to the experts’ team leader. Therefore, the sufficiently direct causal nexus between the Commission’s allegedly unlawful conduct and the losses alleged by the applicant is manifestly lacking.
85 In view of that clear lack of a causal link, the claim for damages brought by the applicant must be dismissed as manifestly unfounded in law.
86 It also follows that there is no longer any need to rule on the applicant’s request that the Court order the Commission to pay interest.
Request for a measure of organisation of procedure
87 The applicant requests the Court, pursuant to Article 64(3) and (4) of its Rules of Procedure, to order the Framework Contract Support Team to produce the assessment form in respect of the framework contractor and the experts involved in the project ‘Value Chain Mapping Analysis’ that was filled in by the project manager.
88 The applicant states that he is not in possession of this document. In his submission, it could bring more insights regarding the level of his performance and of that of the experts’ team leader. It is also likely to contain incorrect information affecting the applicant’s interests.
89 Given the dismissal of the applicant’s claim for annulment as inadmissible and of his claim for damages as manifestly unfounded in law, there is no longer any need to have recourse to the measure of organisation of procedure requested by the applicant.
Costs
90 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, as applied for by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed.
2. Volker Mauerhofer shall pay the costs.
Luxembourg, 29 June 2010.